CDC/Kemira: Amsterdam Court of appeal applies European principle of effectiveness to limitation periods

On 4 February 2020 the Amsterdam Court of Appel rendered judgment in a cartel damages action filed by claim vehicle CDC against Kemira Chemicals Oy (Kemira), a producer of sodium chlorate. The Court of Appeal disagrees with the Amsterdam District Court’s judgment of 10 May 2017 on issues of statutory limitation (see our June 2016 newsletter) and considers that CDC’s claims are not time-barred under Spanish, Finnish and Swedish law.

The District Court established that CDC’s claims are governed by various systems of law, including Spanish, Finnish and Swedish law. Applying the rules of statutory limitation existing in each of those jurisdiction, it held that CDC’s damages claims were by-and-large time-barred. On appeal, the Court of Appeal overturns that decision and rules that the claims governed by Spanish, Finnish, Swedish law are not time barred. The case is referred back to the District Court, which will have to review the merits of CDC’s claims.

Central in the Court of Appeal’s reasoning is the Cogeco judgment of the European Court of Justice (“ECJ”) of 18 March 2019 (see our April 2019 newsletter). In that case, the ECJ considered that short national limitation periods that start to run before the claimant is able to ascertain the identity of the infringer and that cannot be suspended or interrupted during proceedings before the national competition authority, are incompatible with Article 102 TFEU and the European principle of ‘effectiveness’ (and are therefore precluded). According to the Amsterdam Court of Appeal, this implies “that the injured party must be able to await the final decision of the competition authority (including an appeal) and have sufficient time thereafter to bring his claim for compensation, without being precluded by national limitation rules, considered as a whole.” Indeed, the Court’s view is that under EU law claimants must be able to await the outcome of any administrative appeal against the infringement decision, even in relation to respondent Kemira, who had not filed an appeal against the European Commission’s infringement decision.

The Amsterdam Court of Appeal went on to apply (its interpretation of) the European principle of effectiveness to the relevant statutes of limitation under Spanish, Finnish and Swedish law. Under Spanish law, the Court of Appeal accepts that a limitation period of one year normally runs from the moment the claimant is aware of his loss and the liable person(s). However, with reference to the principle of effectiveness the Court holds that Spanish law must be interpreted as meaning that the one-year limitation period cannot have commenced until the General Court decided on the appeals filed by other addressees against the Commission Decision in May 2011. Under Finnish and Swedish law, the relevant (objective) statutes of limitation ran out before the General Court’s decision in May 2011. Applying (its understanding of) the rationale of Cogeco, the Amsterdam Court of Appeal considers that the Finnish and Swedish statutes of limitation must therefore be set aside.

The Amsterdam Court of Appeal’s decision revives CDC’s sodium chlorate case against Kemira and – more generally – represents a very far-reaching application of the European principle of effectiveness. Whether the decision will stand up to scrutiny on appeal before the Dutch Supreme Court, remains to be seen. For now, suffice it to say that the Court’s reasoning contrasts starkly with the reasoning of the UK Supreme Court in the 2014 case of Deutsche Bahn v Morgan Crucible (summary here), where it was unanimously held that administrative appeals filed by cartelists other than the defendant are irrelevant for purposes of establishing statutory limitation in relation to damages claims against the defendant. Cf. also the 2018 ruling of the EFTA Court in the case of Kystlink v. Color Line, from which it follows that a three year limitation period that is capable of running out before the competition authority has issued its final infringement decision, is not per se contrary to the European principle of effectiveness (see our October 2018 newsletter).

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Marieke Bredenoord-Spoek
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Jeroen Kortmann
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